Part I The Environment Agency and the Scottish Environment Protection Agency
Chapter III Miscellaneous, General and Supplemental Provisions Relating to the New Agencies F43and the Natural Resources Body for Wales
Charging schemes
C1I1C3C441 Power to make schemes imposing charges.
1
Subject to the following provisions of this section and F78sections 41B, 41C and 4 below—
a
in the case of any particular licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), F52an appropriate agency may require the payment to it of such charges as may from time to time be prescribed;
b
F24ba
as a means of recovering costs incurred by it in performing functions conferred by the Reservoirs Act 1975 F51an appropriate agency may require the payment to it of such charges as may from time to time be prescribed;
c
F11as a means of recovering costs incurred by it in performing functions conferred by regulations under section 62 of the 1990 Act (dangerous or intractable waste) each of the new Agencies may require the payment to it of such charges as may from time to time be prescribed;
F11as a means of recovering costs incurred by it in performing functions conferred by regulations made for the purpose of implementing F22Directive 2008/98/EC to the extent that it relates to hazardous waste (within the meaning given by Article 3(2) of that Directive)F46an appropriate agency may require the payment to it of such charges as may from time to time be prescribed;F14F12...
d
as a means of recovering costs incurred by it in performing functions conferred by Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste, as amended from time to time, F98the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;F17F15...
e
as a means of recovering costs incurred by it in performing functions conferred by Regulation (EC) No. 850/2004 of the European Parliament and of the Council on persistent organic pollutants and amending Directive 79/117/EEC as amended from time to time, F48the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
F19f
as a means of recovering costs incurred by it in performing functions conferred by regulations under section 79 of the Climate Change (Scotland) Act 2009 (asp 12), SEPA may require the payment to it of such charges as may from time to time be prescribed;
F16f
as a means of recovering costs incurred by it in performing functions conferred by regulations made for the purposes of implementing Council Directive 2006/117/Euratom on the supervision and control of shipments of radioactive waste and spent fuel (as amended from time to time), F49an appropriate agency may require the payment to it of such charges as may from time to time be prescribed;
F18g
as a means of recovering costs incurred by it in performing functions conferred by regulations made for the purpose of implementing Directive 2006/66/EC of the European Parliament and of the Council on batteries and accumulators and waste batteries and accumulators, as amended from time to time, F50the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be F26 prescribed;
F27h
as a means of recovering costs incurred by it in performing functions conferred by regulation 8A of the Greenhouse Gas Emissions Trading Scheme (Amendment) and National Inventory Regulations 2005, the Agency may require the payment to it of such charges as may from time to time be prescribed;
F31i
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F31j
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
and in this section “prescribed” means specified in, or determined under, a scheme (in this section referred to as a “charging scheme”) made under this section by the F45body in question.
2
As respects environmental licences, charges may be prescribed in respect of—
a
the grant or variation of an environmental licence, or any application for, or for a variation of, such a licence;
b
the subsistence of an environmental licence;
c
the transfer (where permitted) of an environmental licence to another person, or any application for such a transfer;
d
the renewal (where permitted) of an environmental licence, or any application for such a renewal;
e
the surrender (where permitted) of an environmental licence, or any application for such a surrender; or
f
any application for the revocation (where permitted) of an environmental licence.
F202A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
A charging scheme may, for the purposes of subsection (2)(b) above, impose—
a
a single charge in respect of the whole of any relevant licensed period;
b
separate charges in respect of different parts of any such period; or
c
both such a single charge and such separate charges;
and in this subsection “relevant licensed period” means the period during which an environmental licence is in force or such part of that period as may be prescribed.
4
Without prejudice to subsection (7)(a) below, a charging scheme may, as respects environmental licences, provide for different charges to be payable according to—
a
the description of environmental licence in question;
b
the description of authorised activity in question;
c
the scale on which the authorised activity in question is carried on;
d
the description or amount of the substance to which the authorised activity in question relates;
e
the number of different authorised activities carried on by the same person.
5
A charging scheme—
a
shall specify, in relation to any charge prescribed by the scheme, the description of person who is liable to pay the charge; and
b
may provide that it shall be a condition of an environmental licence of any particular description that any charge prescribed by a charging scheme in relation to an environmental licence of that description is paid in accordance with the scheme.
6
Without prejudice to subsection (5)(b) above, if it appears to F53the Agency, the Natural Resources Body for Wales or SEPA that any charges due and payable to it in respect of the subsistence of an environmental licence have not been paid, it may, in accordance with the appropriate procedure, suspend or revoke the environmental licence to the extent that it authorises the carrying on of an authorised activity.
7
A charging scheme may—
a
make different provision for different cases, including different provision in relation to different persons, circumstances or localities;
b
provide for the times at which, and the manner in which, the charges prescribed by the scheme are to be paid;
c
revoke or amend any previous charging scheme;
d
contain supplemental, incidental, consequential or transitional provision for the purposes of the scheme.
8
If and to the extent that a charging scheme relates to licences under Chapter II of Part II of the 1991 Act (abstraction and impounding), the scheme shall have effect subject to any provision made by or under sections 125 to 130 of that Act (exemption from charges, imposition of special charges for spray irrigation, and charges in respect of abstraction from waters of F28Canal & River Trust).
9
A new Agency shall not make a charging scheme unless the provisions of the scheme have been approved by the Secretary of State under section 42 below.
F449A
The Natural Resources Body for Wales may not make a charging scheme unless the provisions of the scheme have been approved by the Welsh Ministers under section 42.
C610
F7710A
Any power of the Secretary of State to make regulations under this section is exercisable in relation to Wales only after consultation with the Welsh Ministers.
11
Any power to make regulations under this section shall be exercisable by statutory instrument; and a statutory instrument containing any such regulations shall be subject to annulment pursuant to a resolution of either House of Parliament.
41AF10F25Charges in respect of F29the EU greenhouse gas emissions trading scheme
F321
Each of the F79charging authorities may require the payment to it of such charges as may from time to time be prescribed—
a
as a means of recovering costs incurred by it in performing functions conferred under or by virtue of regulations made for the purpose of implementing the EU ETS Directive;
b
in respect of—
i
an application to open an account that, under the F97Registries Regulation 2013 , is required to be held in a trading scheme registry;
ii
the subsistence of such an account;
iii
the updating of information provided to the Agency in relation to such an account;
and in this section “prescribed” means specified in, or determined under, a scheme (in this section referred to as a “charging scheme”) made under this section by the F80charging authority in question.
1A
A charging scheme may—
a
make different provision for different cases, including different provision in relation to different persons, circumstances or localities;
b
provide for the times at which, and the manner in which, the charges prescribed by the scheme are to be paid;
c
revoke or amend any previous charging scheme;
d
contain supplemental, incidental, consequential or transitional provision for the purposes of the scheme.
1B
A charging scheme must specify, in relation to any charge prescribed by the scheme, the description of person who is liable to pay the charge.
1C
2
If the Agency—
a
proposes to prescribe F33charges under subsection (1)(b) or to amend any provision for such charges included in a charging scheme, and
b
notifies F87another charging authority of its proposals,
3
If the Agency revises any proposals of which it has given notification under subsection (2) above, and notifies F88the relevant charging authority accordingly, the obligations imposed by that subsection apply in relation to the proposals as revised.
4
A notification under subsection (2) or (3) above shall include details of the amount of the proposed charges.
5
6
A charging scheme made by the Agency may require the payment to the Agency of such charges as may from time to time be prescribed in respect of—
F36a
an application to open an account in a trading scheme registry, other than one that under the F95Registries Regulation 2013 is required to be held in that registry;
b
the subsistence of such an account;
c
the updating of information provided to the Agency in relation to such an account.
F967
In this section—
“charging authority” means the Agency, the Natural Resources Body for Wales or SEPA;
“the Registries Regulation 2013” means Commission Regulation (EU) No 389/2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 290/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011, as amended from time to time; and
“trading scheme registry” means any registry operated by the Agency for the purpose of meeting the obligations of the United Kingdom referred to in Articles 4(3) and 5(1) of the Registries Regulation 2013.
41BF76Charging schemes in respect of abstraction and impounding licences: joint charging schemes
1
A charging scheme under section 41 relating to licences under Chapter II of Part II of the 1991 Act may be made by both of the appropriate agencies acting jointly (referred to in this section as a “joint charging scheme”), if that scheme prescribes charges in relation to licences granted within a combined area that—
a
is partly in England and partly in Wales; and
b
includes all of, or any part of, the catchment areas of the rivers Dee, Wye and Severn.
2
A joint charging scheme must—
a
designate the combined area to which it applies; and
b
specify the manner in which the sums recovered by way of charges prescribed by the scheme are to be apportioned between, and paid to, each appropriate agency.
3
Subsections (9) and (9A) of section 41 do not apply to joint charging schemes.
4
Subject to subsection (5), the appropriate agencies may not make a joint charging scheme unless the provisions of the scheme have been approved under section 42 by the Secretary of State and the Welsh Ministers acting jointly.
5
Section 42 applies in relation to joint charging schemes as though references in that section to—
a
anything done by or in relation to either the Secretary of State or the Welsh Ministers were references to that thing being done by or in relation to the Secretary of State and the Welsh Ministers acting jointly;
b
a charging authority were references to both of the appropriate agencies acting jointly.
6
This section does not affect any power of an appropriate agency to make a charging scheme under section 41.
41CCharging schemes in respect of abstraction and impounding licences: cross-border arrangements
1
An appropriate agency may not make or revise a relevant charging scheme unless it has—
a
notified the other appropriate agency of its proposal; and
b
had regard to any information provided by the other appropriate agency relating to costs or expenses—
i
which the other appropriate agency has incurred or expects to incur, and
ii
in respect of which the other appropriate agency considers that the relevant charging scheme should make provision.
2
Subsection (1) does not apply to a joint charging scheme made in accordance with section 41B.
3
An appropriate agency may not, without the consent of the other appropriate agency, enter into any agreement, or any variation of an agreement, as a result of which it will be liable to incur costs or expenses—
a
in respect of which it would expect a relevant charging scheme made by the other appropriate agency (or by both of the appropriate agencies acting jointly) to make provision; and
b
which would, if an existing relevant charging scheme were revised to make provision for the purpose of recovering the amount required to meet those costs or expenses in full, result in a significant increase in the charges payable under that charging scheme.
4
Either appropriate agency may refer the question of whether consent should be given for the purposes of subsection (3) for determination by the Secretary of State and the Welsh Ministers acting jointly.
5
The Secretary of State and the Welsh Ministers, acting jointly—
a
may give guidance to the appropriate agencies as to the exercise of the appropriate agencies’ functions under this section;
b
must arrange for any guidance given under this subsection to be published in such manner as they consider appropriate.
6
The appropriate agencies must have regard to any guidance given under subsection (5).
7
In this section, “relevant charging scheme” means a charging scheme under section 41 which relates to any extent to licences granted under Chapter II of Part II of the 1991 Act in respect of abstractions from, or impounding of, waters in the catchment areas of the rivers Dee, Wye and Severn.
C2C5C7C842 Approval of charging schemes.
1
Before submitting a proposed charging scheme to the Secretary of State F62or the Welsh Ministers for approval, a charging authority shall, in such manner as it considers appropriate for bringing it to the attention of persons likely to be affected by the scheme, publish a notice—
a
setting out its proposals; and
b
specifying the period within which representations or objections with respect to the proposals may be made to the Secretary of State F63or, as the case may be, the Welsh Ministers.
2
Where any proposed charging scheme has been submitted to the Secretary of State F56or the Welsh Ministers for approval, he F57or they shall, in determining whether or not to approve the scheme or to approve it subject to modifications,—
a
consider any representations or objections duly made to him F64or them and not withdrawn; and
F39b
have regard to—
i
in the case of a charging scheme made under section 41, the matter specified in subsection (3);
ii
in the case of a charging scheme made under section 41A, the matter specified in subsection (3A).
3
The matter mentioned in subsection F38(2)(b)(i) above is the desirability of ensuring that, in the case of each of the descriptions of environmental licence specified in the paragraphs of the definition of that expression in section 56 below, the amounts recovered by the F54charging authority in question by way of charges prescribed by charging schemes are the amounts which, taking one year with another, need to be recovered by that F54charging authority to meet such of the costs and expenses (whether of a revenue or capital nature)—
a
which it incurs in carrying out its functions,
b
F99in the case of environmental licences which are authorisations under section 13(1) of the M1Radioactive Substances Act 1993—
i
F2ii
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F99which the Food Standards Agency incurs in carrying out its functions in relation to environmental permits under the Environmental Permitting (England and Wales) Regulations 2010 concerning the disposal of radioactive waste within the meaning of those Regulations.
F91c
in the case of licences granted by the Agency under Chapter II of Part II of the 1991 Act (abstraction and impounding), which the Natural Resources Body for Wales incurs in carrying out its functions under Part II of that Act or section 6(2A) above in the catchment areas of the rivers Dee, Wye and Severn for purposes connected with abstractions from, or impounding of, waters in England,
d
in the case of licences granted by the Natural Resources Body for Wales under Chapter II of Part II of the 1991 Act (abstraction and impounding), which the Agency incurs in carrying out its functions under Part II of that Act or section 6(2) above in the catchment areas of the rivers Dee, Wye and Severn for purposes connected with abstractions from, or impounding of, waters in Wales,
as the Secretary of State F55or, as the case may be, the Welsh Ministers may consider it appropriate to attribute to the carrying out of those functions in relation to activities to which environmental licences of the description in question relate.
F373A
The matter mentioned in subsection (2)(b)(ii) above is the desirability of ensuring that the amounts recovered by the F92charging authority in question by way of charges prescribed by charging schemes are the amounts which, taking one year with another, need to be recovered by that F92charging authority to meet such of the costs and expenses (whether of a revenue or capital nature) which it incurs in carrying out its functions in relation to the matters described in section 41A(1) as the Secretary of State F93or, as the case may be, the Welsh Ministers may consider it appropriate to attribute to the carrying out of those functions.
4
Without prejudice to the generality of the expression “costs and expenses”, in determining for the purposes of subsection (3) F40or (3A) above the amounts of the costs and expenses which the Secretary of State considers F58or which the Welsh Ministers consider it appropriate to attribute to the carrying out of a F59charging authority's or the F3Food Standard Agency’s functions F41..., the Secretary of State F60or the Welsh Ministers—
a
5
If and to the extent that a charging scheme relates to any licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), the Secretary of State F69or the Welsh Ministers (as the case may be) may consider it appropriate to attribute to the carrying out of F67an appropriate agency's functions in relation to activities to which such a licence relates any costs and expenses incurred by the F70appropriate agency in carrying out any of its functions under Part II of that Act or under section 6(2) F71or (2A) above.
6
Subsection (5) above is without prejudice to what costs and expenses the Secretary of State F72or the Welsh Ministers may consider it appropriate to attribute to the carrying out of any functions of a F73charging authority, the Minister or the Secretary of State in relation to activities to which environmental licences of any particular description relate.
7
8
It shall be the duty of a F74charging authority to take such steps as it considers appropriate for bringing the provisions of any charging scheme made by it which is for the time being in force to the attention of persons likely to be affected by them.
9
If and to the extent that any sums recovered by a F75charging authority by way of charges prescribed by charging schemes may fairly be regarded as so recovered for the purpose of recovering the amount required to meet (whether in whole or in part)—F6such of the costs and expenses incurred by the Food Standards Agency as fall within subsection (3) above those sums shall be paid by that F75charging authorityF7to the Food Standards Agency.
F899A
The Agency must pay to the Natural Resources Body for Wales any sums which the Agency recovers under a charging scheme made under section 41 (other than a joint charging scheme made in accordance with section 41B) that may fairly be regarded as recovered for the purpose of meeting (in whole or in part) any costs and expenses incurred, or deemed to have been incurred, by the Body in carrying out its functions under Part II of the 1991 Act or section 6(2A) above.
9B
The Natural Resources Body for Wales must pay to the Agency any sums which the Body recovers under a charging scheme made under section 41 (other than a joint charging scheme made in accordance with section 41B) that may fairly be regarded as recovered for the purpose of meeting (in whole or in part) any costs and expenses incurred by the Agency in carrying out its functions under Part II of the 1991 Act or section 6(2) above, other than costs and expenses that are deemed to have been incurred by the Body.
9C
Any sums recovered by an appropriate agency by way of charges prescribed by a joint charging scheme made in accordance with section 41B must be apportioned between, and paid to, each appropriate agency in the manner specified by the scheme pursuant to section 41B(2)(b).
9D
For the purposes of subsections (9A) and (9B), costs or expenses are deemed to have been incurred by the Natural Resources Body for Wales if the liability for those costs or expenses was transferred from the Agency to the Body on 1st April 2013—
a
by a transfer scheme made by the Welsh Ministers under section 23 of the Public Bodies Act 2011; or
b
by virtue of article 10 of, and paragraph 2 of Schedule 7 to, the Natural Resources Body for Wales (Functions) Order 2013.
10
For the purposes of subsection (9) above, any question as to the extent to which any sums may fairly be regarded as recovered for the purpose of recovering the amount required to meet the costs and expenses falling within F8that subsection shall be determined by the Secretary of State.
F9010A
Any dispute as to the apportionment or payment of sums under subsection (9A), (9B) or (9C) shall be determined by the Secretary of State and the Welsh Ministers acting jointly.
F4211
In this section “charging scheme” means a scheme made under section 41 or 41A F61and “charging authority” means the body that makes or proposes to make a charging scheme.
Words in Pt. I Ch. III heading inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 370 (with Sch. 7)